The Sixth Circuit delves into the issue of employer liability (under Title VII and § 1981) for harassment of white employees who associate with African-American employees. Although the panel announces a plaintiff-friendly standard, it nonetheless winds up affirming summary judgment for all but one of the employees.
Barrett v. Whirlpool Corp., No 08-5307 (6th Cir. Feb. 23, 2009): The plaintiffs on appeal, three white employees in a plant hiring up to 2100 (20% of whom are African-American), allege that they took grief from white co-workers because they resisted racist jokes and taunting. They allege that they were shunned, called names and (in one instance) required to perform low-paying, physically demanding work. Although most of the trouble allegedly originated with other white employees, at least one of the alleged harassers is identified as black. “[Plaintiff] Nickens testified that [Rob] Spivey, who is African-American, and [another employee] would harass her for ‘hang[ing] around with blacks,’ particularly for spending time with her friend and co-worker Henry Beasley. (JA 717.) Nickens alleges that Spivey made a comment that ‘he didn’t think it was right[,] Henry hanging around with white women.'”
The panel reaches outcomes on two legal issues critical to the success of employees in these case. [The EEOC appeared as amicus curiae.] First, it holds that no particular degree of association need be pled or proven by the plaintiff in such cases:
“If a plaintiff shows that 1) she was discriminated against at work 2) because she associated with members of a protected class, then the degree of the association is irrelevant. The absence of a relationship outside of work should not immunize the conduct of harassers who target an employee because she associates with African-American co-workers. While one might expect the degree of an association to correlate with the likelihood of severe or pervasive discrimination on the basis of that association-for example, a nonprotected employee who is married to a protected individual may be more likely to experience associational harassment than one who is merely friends with a protected individual-that goes to the question of whether the plaintiff has established a hostile work environment, not whether he is eligible for the protections of Title VII in the first place. Therefore, we conclude that the district court erred in requiring a certain degree of association before a non-protected employee may assert a viable claim under Title VII.” [Citiation omitted.]
Second, it holds that active opposition to harassment or other protected activity is not required to state a claim (citing to the recent Supreme Court decision, Crawford v. Metro. Gov’t of Nashville & Davidson County, Tenn.):
“As with the question of association, the key questions are whether Plaintiffs were discriminated against, and whether the reason for the discrimination was their advocacy for protected employees. [Citation omitted.] And, as with association, severe or pervasive
discriminatory harassment is more likely to correlate with more vigorous advocacy, but
as long as a plaintiff offers proof that she was, in fact, discriminated against because she
advocated for protected employees, she may state a discrimination claim under Title VII.”
Despite persuading the Sixth Circuit to follow these less-stringent standards, only one of the three employees is able to persuade the court to reverse summary judgment. The problem for the white employees is that most of the harassment alleged — crude and racist though it was — was directed at the black employees themselves. The panel holds that “only harassment that specifically targeted those who associated with and advocated for African-Americans will result in an actionable hostile work environment claim for such individuals.”
The one employee who prevailed on appeal, Nickens, was able to show (1) that a supervisor was involved, and (2) that she was threatened with physical violence because of her workplace friendships with blacks.
“While Whirlpool contests the facts surrounding many of her allegations, a reasonable jury could find that Nickens was subjected to a severe or pervasive hostile work environment that
altered the conditions of her employment: she received a threat of physical violence for reporting racist language, she was subjected to a regular stream of offensive comments about her relationship with an African-American co-worker, and the same relationship was allegedly used as a reason to prevent her from applying for improved job positions. Nickens has alleged facts giving rise to Whirlpool’s liability in that she reported nearly all of the relevant incidents involving co-worker harassment to one of two supervisors, Bingham and Knight, and they failed to take corrective action. Furthermore, Nickens has alleged that both of these supervisors, particularly Knight, harassed her directly.”
Coincidence or not, the one successful plaintiff was also the one subject to harassment by a black co-worker.